How can we help?


Does abandoning a tender defeat a bidder’s claim?

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages. Other remedies may also be available, depending on whether a contract has been entered into or not by the public body.

But what if, after a challenge has been brought, the public body decides to abandon the tender? Does this defeat the bidder’s claim to damages?

This is the question the High Court recently had to consider in the case of Amey Highways Limited v West Sussex County Council. Amey had challenged the outcome of a highways contract which had been awarded to another bidder which scored just 0.03 more points than Amey. Amey contended that the Council had acted in breach of the Regulations in evaluating the tenders; and that had it not been for the Council’s breaches, it would have scored higher and should therefore have been awarded the contract.

After Amey’s claim had been issued, it successfully resisted an initial attempt by the Council to have the claim struck out. At that stage, concerned by the risks involved in continuing the litigation, the Council decided to abandon the procurement and re-tender the contract. Its expectation and intention was that abandoning the procurement would have the effect of bringing Amey’s claim for damages to an end.

However, the Court decided that the decision to abandon the tender did not have any effect on Amey’s claim. There was no suggestion that Amey would not have been awarded the contract, if they were correct in showing that they should have received higher marks. In addition, there was no evidence that the Council would have decided to abandon the procurement in any event, had it not been for the claim – the sole driver of the decision to abandon had been the hope that this would extinguish Amey’s claim.

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages.

The court decided that the Council’s decision to abandon, although it might have had the effect of depriving a bidder of a claim which had not come into existence until after the decision, did not have any impact on a cause of action which had already accrued before the date of the decision.

Public bodies will need to consider the impact of this decision carefully when deciding how to deal with procurement challenges, and be aware that abandoning a tender will not always be a get out of jail free card: a disgruntled bidder may still have the right to claim damages, even after a procurement has been abandoned and re-started.

About this article

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

  • 22 September 2023
  • Employment

Talking Employment Law: New family friendly rights

In this first podcast in the ‘Talking Employment Law’ series, Lucy Densham Brown and Rebecca Dowle, members of the employment team summarise some of the big new family-friendly Bills that are working their way through parliament.

  • 20 September 2023
  • Commercial Real Estate

Commercial buyers beware of residential Stamp Duty Land Tax

This article discusses a recent case in which a property buyer calculated the Stamp Duty Land Tax due on the purchase at a lower rate, due to the mixed-use purpose of the property.

  • 19 September 2023
  • Privacy and Data Protection

Organisations’ use of social media: Data protection

Social media applications (or commonly known as ‘apps’) are being developed all the time and we are constantly being introduced to new social media platforms, some of which take almost no time to gain huge popularity.

  • 14 September 2023
  • Immigration

Entrepreneurial Dreams: What is the Innovator Founder Visa?

In an era defined by innovation and entrepreneurship, the United Kingdom has made a substantial effort towards fostering its reputation as a global hub for start-ups and innovators. The introduction of the UK’s ‘Innovator Founder’ route has marked a pivotal moment in the country’s immigration policy.

  • 11 September 2023
  • Corporate and M&A

Changes to the tax treatment of Employee Ownership Trusts

The government published a consultation on 18 July 2023 seeking the public’s views on its proposals to reform the tax treatment of Employee Ownership Trusts and Employee Benefit Trusts. Parties are invited to express their opinions via email via the government website until the consultation closes on 25 September 2023.

  • 08 September 2023
  • Immigration

Navigating the Latest Immigration Rules for Overstayers in the UK: A Comprehensive Guide for 2023

Staying beyond the expiration of your UK visa is a serious matter that, in most cases, can result in significant and long-lasting repercussions.